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Smithson: Late night retail labour protection watered down

In 2008, the B.C. government enacted occupational health and safety rules governing employees working alone or in isolation.

There were three new categories of workplace protection introduced at that time, one of which now seems to have been substantially watered down.

The first of the 2008 rules continues to apply to all employers. They must identify, eliminate and control hazards before a worker is assigned to work alone or in isolation.

And they must develop and implement a procedure for checking the well-being of any worker who is assigned to work alone or in isolation.

The second of the 2008 changes also continues to apply, specifically to employers operating gas stations. They must implement a prepay system for all fuel sold in gas stations and other refueling outlets (with the exception of marine fueling stations).

The prepay system does not have to be the common pay-at-the-pump system, but it does have to be set up to ensure gas is paid for before pumping begins.

The fuel prepay rules apply 24 hours per day, seven days per week. These rules apply in both urban and rural locations throughout B.C., include both self-serve and full-serve gas stations and are in effect regardless of how many workers are present.

The third of the 2008 rules applies to employers who have staff who are working alone or in isolation in retail premises between 10 p.m. and 6 a.m.

These employers are required to develop written procedures for handling money and the workers must be trained in these procedures.

More notably, if the worker will be alone, the employer must ensure the worker is physically separated from the public by a locked door or barrier.

There were no specific requirements implemented about how the barrier must be constructed, but it must prevent the public from physically contacting or gaining access to the worker.

Effective in April, 2012, however, WorkSafeBC has offered retailers a further option which waters down the requirement to provide a protective barrier for lone retail employees.

This amendment “addresses implementation issues and challenges with the existing regulation,” specifically that hiring additional workers (so that none would be working alone) or erecting a physical barrier are not practicable for all late night retailers.

If chosen, the new “engineering and administrative” option will require retail employers to implement certain listed controls and to undertake regular security audits by a qualified and independent person to confirm that all the controls have been implemented.

If an employer chooses the alternative to the physical barrier, they must implement:

• a time lock safe on the premises that cannot be opened during late night hours

• storage in a time lock safe of cash and lottery tickets that are not reasonably required in order to operate during late night hours

• good visibility into and out of the premises

• limited access to the inside of the premises

• monitoring of the premises by video surveillance

• signs on the premises indicating that the safe is a time lock safe that cannot be opened during late night hours, that there is a limited amount of accessible cash and lottery tickets on the premises and that the premises are monitored by video surveillance.

Also, workers assigned under this new “engineering and administrative” option to work late night hours must be at least 19 years of age and be provided with personal emergency transmitters that are monitored by the employer, a security company, or other person designated by the employer.

The 2008 rules, specifically those establishing the requirement for physical barriers protecting late night retail employees, were a bold step to protect employees in highly vulnerable working situations.

The introduction of the new “engineering and administrative” option strikes me as a watering down of those protections that may reduce, but won’t eliminate, the physical risks to late night retail employees.

Robert Smithson is a labour and employment lawyer and operates Smithson Employment Law in Kelowna. This subject matter is provided for general informational purposes only and is not intended as legal advice.

www.smithsonlaw.ca

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